RS and TU (Children: Return Order to Zimbabwe), Re

Introduction

By an application dated 05 August 2025, the father seeks a return order to Zimbabwe in relation to his daughters, RS who is aged 10 and TU who is aged 6. The application is opposed by the children’s mother (M), with whom the children have been living in the UK since she brought them here in early April 2025.

F’s application is brought under the Child Abduction and Custody Act 1985 incorporating the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’). In the event that the court determines that there has not been a wrongful removal for the purposes of the Convention, F invites the court to make a summary return order in the exercise of its inherent jurisdiction.

The children and their parents are Zimbabwean nationals. M and F married in 2014. RS was born in 2015. TU was born in 2019. F is registered as father on both girls’ birth certificates. The parents never lived together. Whilst there is some dispute about the children’s precise care arrangements in Zimbabwe, it seems clear that they spent time with their parents, maternal grandparents, and paternal grandmother (PGM).

In or around September 2022, M left Zimbabwe for the UK and has lived here ever since. The children remained in Zimbabwe. They spent a considerable amount of time with F and PGM at PGM’s home, supported by a maid, and they also spent time with their maternal grandparents. The children would spend time with M whenever she visited Zimbabwe.

M visited Zimbabwe in August 2023 and there was an incident, the details of which are disputed. On 14 September 2023, M secured an order from a magistrate granting her “sole custody” of the children and F was directed to return the children to her care. F appealed that order and its continuing status is a matter of dispute between the parties: M maintains that it remains in force; F insists that it has been overtaken by subsequent orders and practice guidance (by way of a ‘Memorandum’ from the Chief Magistrate’s Office).

M returned to the UK shortly after the “sole custody” order was made. The children lived with their maternal grandparents. On 12 December 2023, F secured a High Court order granting him “rights of access” over the children to be exercised on alternate weekends and during school holidays.

There continued to be issues relating to the children’s care arrangements and the court bundle contains various welfare reports commissioned in Zimbabwe. The children last had direct contact with F in January 2025. It appears that F’s appeal against the “sole custody” order was withdrawn on 27 February 2025. F then started fresh proceedings on 07 April 2025, coincidentally on the day that the children were removed from Zimbabwe. Those proceedings are ongoing with a report having been filed by the ‘Curator ad litem’ which recommends that F should have “primary custody” for the children and that M should retain “reasonable rights of access”.

It is agreed that the children were habitually resident in Zimbabwe when M brought them to the UK on 07 April 2025. It is further agreed that M removed the children without F’s knowledge or consent.

The key issues in the case are as follows:

These Proceedings

The first of a series of Tipstaff Location Orders was made on 05 August 2025. The children were located in early September 2025.

Case management directions were given at inter partes hearings by Ms Justice Henke on 19 September 2025 and 29 October 2025, and by Mr Nicholas Allen KC (sitting as a Deputy High Court Judge) on 03 December 2025.

The case management directions included:

The matter was listed before me with a time estimate of three days. The trial bundle ran to 342 pages and included five statements from F and three statements from M. The authorities bundle ran to 381 pages. I received a helpful skeleton argument from Mr Joseph Landman, counsel, who has represented F throughout the proceedings. M has been a litigant in person throughout, with her sister acting from time to time as her McKenzie Friend. I am grateful to Mr Landman and his instructing solicitors for the way in which this case has been prepared and presented, and the steps they have taken to assist M as a litigant in person.

On the first day of the hearing, M was assisted by Mr Joshua Roderick, solicitor-advocate from Lyons Davidson solicitors, who was the duty advocate for the CALA Duty Advocate Scheme. At short notice, and pro bono, Mr Roderick prepared a helpful position statement in support of an adjournment application. After hearing oral submissions, and short evidence from Ms Demery limited to the likely impact of delay, I refused that application for the reasons set out below.

I agreed with the parties that it would not be necessary or proportionate for me to hear oral evidence from the parties given the summary nature of the proceedings and the issues in this particular case.

I heard brief oral evidence from Ms Demery. I then heard submissions from Mr Landman and M on an “issue by issue” basis and at a deliberately slow pace. It became known during the afternoon of day 1 that M’s sister was not going to be able to support her as McKenzie Friend on day 2. Accordingly, the “custody rights” issue was addressed on day 1 because this was the least straightforward. I do not under-estimate the difficulties for M in representing herself, particularly in a case like this which is inevitably emotionally fraught but also involved frequent references to the applicable legal framework. M is plainly an intelligent and capable person and I was impressed by the calm and considered way in which she addressed the court, and by her obvious marshalling of the bundle.

Adjournment Application

On behalf of M, Mr Roderick sought an adjournment to a new date when he and Mr Mani Basi, counsel, would – to their credit – represent M pro bono. Mr Roderick had obtained availability for January and February 2026. However, the earliest date that the court could accommodate a two-day fixture was not until 17 March 2026, and the earliest date where court availability overlapped with Mr Roderick and Mr Basi’s availability was not until April 2026. The application was opposed by F.

It was not in issue that from as long ago as 12 September 2025, M had been reminded of the importance of securing legal representation. This was first raised in correspondence by F’s solicitors and was then reflected in recitals on court orders dated 29 October 2025 and 03 December 2025. This final hearing has been “in the diary” since 19 September 2025. From time to time, M has tried to obtain legal representation. I was told that she is ineligible for public funding but cannot afford to pay privately. She had been expecting to be representing herself until she was put in touch with Mr Roderick towards the end of last week.

Ms Demery confirmed that whilst the children are doing well in M’s care, delay in decision-making for children is generally acknowledged to be detrimental, and the longer these proceedings go on for these children, the more of a “wrench” it will be if they are in fact to be returned to Zimbabwe.

I had regard to the Overriding Objective (FPR 2010, rule 1.1) and the general principle that delay is likely to be prejudicial to a child’s welfare (as recognised, for example in Children Act 1989, s 1(2)). I considered the leading case of Re P (A Child: Fair Hearing) [2023] EWCA Civ 215 where Peter Jackson LJ listed (at [45]) twelve propositions drawn from the authorities and emphasised (at [46]) that this list is a selection and not a checklist, and that when a court is considering whether or not to grant an adjournment, the decision is fact-specific and the “essential touchstone is fairness”. I was also referred to a decision of Mr Justice Harrison in Re A (A Child) (Abduction: Adjournment following Refusal of Legal Aid) [2025] EWHC 484 where, in different circumstances, an adjournment was granted.

It seemed to me that the key argument in favour of an adjournment was that it would more obviously ensure fairness through ‘equality of arms’ in terms of representation, in circumstances where the issues in the case are serious and are not straightforward. However, that argument had to be balanced against the following considerations:

Weighing these matters in the round, and returning to the “touchstone” of fairness, I determined that the adjournment application should be refused.

Legal Framework

Wrongful Removal

The relevant parts of the Convention are as follows:

Pursuant to Family Procedure Rules 2010, Practice Direction 12F – International Child Abduction, para 2.2: “rights of custody” are ‘interpreted very widely (see paragraph 2.16 below)’. Para 2.16 provides (emphasis added):

“‘Rights of custody’ includes rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. Rights of custody may arise by operation of law (that is, they are conferred on someone automatically by the legal system in which they are living) or by a judicial or administrative decision or as a result of an agreement having legal effect. The rights of a person, an institution or any other body are a matter for the law of the State of the child’s habitual residence, but it is for the State which is being asked to return the child to decide: if those rights amount to rights of custody for the purposes of the 1980 Hague Convention; whether at the time of the removal or retention those rights were actually being exercised; and whether there has been a breach of those rights.”

. . .

Para 2.19 provides:

“The fact that court proceedings are in progress about a child does not of itself give rise to a prohibition on the removal of the child by a mother with sole parental responsibility from the country in which the proceedings are taking place unless:

(a)

the proceedings are Wardship proceedings in England and Wales (in which case removal would breach the rights of custody attributed to the High Court and fathers with no custody rights could rely on that breach); or

(b)

the court is actually considering the custody of the child, because then the court itself would have rights of custody.”

The relevant date for assessing whether a removal or retention is in fact wrongful is the date of the alleged removal or retention (Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105, per Moylan LJ at para 68).

The burden of proving a wrongful removal or retention rests with the applicant (here, F).

Where there is an issue as to whether the removal was wrongful, the Convention provides a mechanism whereby the court in the requested state can seek a determination from the authorities of the state of habitual residence under Article 15:

The decision as to whether the removal was wrongful rests with the court in the requested state. However, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, Lady Hale observed (at [44]): “The foreign court is much better placed than the English to understand the true meaning and effect of its own laws in Convention terms. Only if its characterisation of the parent’s rights is clearly out of line with the international understanding of the Convention’s terms . . . should the court in the requested state decline to follow it.” Lady Hale continued (at [45]): “While ultimately, therefore, the decision is one for the courts of the requested state, those courts must attach considerable weight to the authoritative decision of the requesting state on both issues.” [“both issues” refers to the questions described by Lady Hale at [39]: “what rights does that person have under the law of the home country?” and “are those ‘rights of custody’ within the meaning of the Convention’”)]. In the same case, Lord Brown said (at [81]): “Certainly there would need to be some compelling reason to reject it [the Article 15 determination] such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term “rights of custody”.”

Mr Landman properly brought to my attention the recent case of F v. L & Ors (Rev 1) [2025] EWHC 2190, where Mr Vikram Sachdeva KC (at [56]) preferred the opinion of a single joint expert over the opinion of the Zimbabwean Ministry of Justice. That case was of course decided on its own facts and evidence.

Articles 12 and 13

The relevant parts read as follows:

Article 13(b): Grave Risk/Intolerable Situation

The leading authorities are the Supreme Court decisions in Re E (children) (international abduction) [2011] UKSC 27 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10. The relevant principles were summarised by Baker LJ in Re IG (A Child) (Child abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 (at [47]):

“(1)

The terms of Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words “grave” and “intolerable”.

(2)

The focus is on the child. The issue is the risk to the child in the event of his or her return.

(3)

The separation of the child from the abducting parent can establish the required grave risk.

(4)

When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then establish how the child can be protected from the risk.

(5)

In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination.

(6)

That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do.

(7)

If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk.

(8)

In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there.

(9)

In deciding what weight can be placed on undertakings, the court has to take into account the extent to which they are likely to be effective, both in terms of compliance and in terms of the consequences, including remedies for enforcement in the requesting State, in the absence of compliance.

(10)

As has been made clear by the Practice Guidance on “Case Management and Mediation of International Child Abduction Proceedings” issued by the President of the Family Division on 13 March 2018 (Footnote: ¹), the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks.”

In G v D (Article 13(b) Absence of Protective Measures [2020] EWHC 1476 at para 39 (quoted with approval by the Court of Appeal in Re C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354 at para 60), MacDonald J noted “. . . it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk) [2003] EWCA Civ 355, [2003] 2 FLR 141, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433).”

Article 13(2): Child Objections

The leading authority is the Court of Appeal decision in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, and the applicable principles were summarised by Williams J in Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490(at [50]):

“i)

The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

ii)

Whether a child objects is a question of fact. The child's views have to amount to an objection before Article 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.

iii)

The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.

iv)

There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more.

v)

At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

vi)

Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child's welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).”

In C v M (A Child) (Abduction: Representation of Child Party) [2023] EWCA Civ 1449 at para 76, Moylan LJ said:

Inherent Jurisdiction

The leading authorities are the decisions of the House of Lords in Re J (Child Returned Abroad: Convention Rights) [2006] UKHL 40, and the Supreme Court in Re NY (A Child) [2019] UKSC 49.

The principles are well-known and it is not necessary for me to list them. For the purposes of this judgment, I simply highlight:

Discussion

Wrongful Removal (Article 3)?

As already mentioned, the Zimbabwean authorities have helpfully provided two responses to the “respectful request” made under Article 15 of the Convention.

The memorandum from the Zimbabwean Ministry of Justice, Legal and Parliamentary Affairs, dated 12 November 2025, references a Zimbabwean authority (Peacock v Steyn HC1370/2010) where “the court held that the removal or retention of a child is wrongful if it breaches access rights under the Zimbabwean law and the non-transporting parent must be consulted before removal even in the absence of joint custody”.

The opinion from the High Court in Zimbabwe which is undated but was received by F’s solicitors on 02 December 2025, references further case law including Kumalo v Kumalo (HH 65/04) where it was stated: “In our law, both parents of children born to a marriage have the right to determine the place of residence of the children of their marriage. Thus, the consent of each parent has to be sought before the children leave the jurisdiction and it is only when consent has been unreasonably withheld that leave of this court, as upper guardian of all minors, is sought.” With respect to this case, the opinion is: “the respondent’s unilateral removal of the children to the United Kingdom breached the applicant’s rights of custody and therefore constitutes wrongful removal under Article 3. . . . In light of the order given by Wamambo J, the parties shared custody of the minor children at the time of the removal. Both parents were jointly responsible for the day-to-day care of the children, jointly participated in all major decisions concerning their upbringing, and each exercised rights of custody in terms of Zimbabwean law. In the absence of any court order varying or limiting those rights, the respondent could not lawfully relocate the children outside Zimbabwe without the applicant’s knowledge and consent.”

M questioned the veracity of this second response, referring somewhat unconvincingly to its alleged use of different fonts. F’s solicitors have done all they can to verify it including the production of emails showing how it was sent to them by ICACU. I am satisfied that I should proceed on the basis that this is a genuine document.

The decision as to whether the removal was wrongful for the purposes of Article 3 is for this court to take. However, mindful of the guidance in Re D (Abduction: Rights of Custody) [2006] UKHL 51 (see para 29 above), there is in my judgment no compelling reason for me to reject the opinions expressed by the Zimbabwean authorities.

Whilst the children had not had direct contact with F since January 2025, I am satisfied that he was still exercising his rights of custody at the time of their removal, as reflected in his commencement of fresh proceedings in Zimbabwe on 07 April 2025.

In these circumstances, it has not been necessary for me to go on to consider whether the removal was in breach of rights of custody vested in the court in Zimbabwe.

Accordingly, I am satisfied that the removal of the children on 07 April 2025 was indeed wrongful for the purposes of Article 3.

‘Grave Risk/Intolerable Situation’ (Article 13(b))

I can deal with this shortly. Whilst M has made some domestic abuse allegations against F, which are disputed by him, she has been clear that the risk to the children comes not from F but from PGM. Indeed, if I were to make a return order, M’s position is that the children should live with F rather than with her own parents.

In relation to PGM, M makes the generalised allegation that she has “caused a lot of trauma to my children”. Specifically, M says that when the children were living with PGM, PGM was obstructive when M wanted to speak to the children and the children were largely cared for by the maid. M has produced a letter purportedly from a school teacher (which the teacher has since denied writing) which describes RS being upset at school and reporting neglectful care by PGM and the maid. When RS was aged 9 she spoke to a child protection officer in Zimbabwe and made complaints about when she had been living with PGM: she had spent most of her time with the maid and not F or PGM; the maid would only cook porridge for the children in the morning and would then leave them hungry; there was little supervision and no-one to help with homework; they were not allowed to talk to their mother.

In her written and oral evidence, Ms Demery confirmed that the children had not expressed any particularly negative views about life in Zimbabwe. There was nothing in what they had said which lent support to the allegation that they had suffered abuse.

Taking M’s allegations at their highest, they fall well short of the high threshold required for this defence to be established.

I should add that insofar as there may be any concerns about the care which might be afforded to the children if they were to spend time with PGM, mindful of MacDonald J’s guidance in G v D (Article 13(b) Absence of Protective Measures [2020] EWHC 1476 (see para 32 above), I have no reason to doubt that the Zimbabwean authorities are equally as adept in protecting children as are the authorities in the UK.

I am not satisfied that the Article 13(b) defence has been established.

Child Objections (Article 13(2))

I have had the benefit of the written and oral evidence from Ms Demery who is a very experienced CAFCASS officer.

Within Ms Demery’s report, I have a letter from RS in which she says: “I love my family back in Zimbabwe, but I really want to stay in England, and I ask may you please allow us to stay here in England with my mum.” For her part, TU conveyed her wishes in part through using stickers of facial expressions, and Ms Demery noted: “She would have a sad face if she had to return to Zimbabwe, but her dad would have a sad face if they stayed in the United Kingdom.”

In her report, Ms Demery summarised the position as follows: “[The children] are charming children, with engaging personalities. They have expressed a strong wish to remain in the United Kingdom. It appeared from what they have said that they are enjoying exploring a new country. Both clearly value having their mother more present in their lives, as evidenced by [RS] articulating that she really wants to spend more time with her mum, and [TU] stating that her mum takes her everywhere. This appears to be a strong factor in them wishing to remain in the United Kingdom. However, they also love and miss their father and their older relatives living in Zimbabwe.”

In oral evidence, Ms Demery confirmed that the children had spoken to her in a balanced way and without signs of having been coached about what to say.

In relation to RS’s maturity, Ms Demery wrote: “Her range of vocabulary and her ability to express herself verbally suggest that her cognitive maturity is commensurate with her chronological age. However, at her current stage of development, RS does not have the capacity to make decisions in her best interests, however, she is approaching an age when her views will carry some weight but are not determinative.”

In relation to TU’s maturity, Ms Demery wrote: “[TU] would not have gained the requisite maturity to comprehend the longer-term implications of the decisions that need to be made, or the capacity to make decisions in her best interests and is likely to express views that will meet her emotional need to remain close to the parent who is providing her care.”

Ms Demery observed that the children: “require stability and routine and to be nurtured and loved”. She noted that on both parents’ accounts “there has been little stability in the children’s living arrangements, and their mother has not been as constant a presence in the children’s lives as they would have liked.”

Considering the evidence from Ms Demery, and mindful of the guidance from case law, I am sceptical about whether the “gateway” test has been met: whilst the children have expressed a “strong wish” to stay in the UK, that does not equate to an objection to returning to Zimbabwe.

However, a “strong wish” is more than simply a preference. And, as described by Ms Demery, RS is approaching an age where her views will carry some weight. In my judgment, it is right that I should consider how I would exercise my discretion if the gateway test was in fact met. In doing so: (1) the weight to be attached to the children’s views would be limited by their respective ages and levels of maturity, and the likely reasons underpinning those views as described by Ms Demery; (2) welfare considerations pull strongly towards the children being returned to Zimbabwe, where they have lived all their lives until April 2025, so that any necessary decisions about their future care arrangements can be made by the Zimbabwean authorities; (3) policy considerations underlying the Convention also pull strongly towards a swift return to Zimbabwe.

Whether or not the gateway test is met, the result is the same: I am not satisfied that the Article 13(2) defence has been established.

Settlement

I deal with this briefly. As part of her defence to F’s application for a summary return order, M had claimed that the children are “settled” in the UK in that they are enjoying life with M and her wider family here, at school and generally. M accepted that, whether or not the children are “settled”, the defence under Article 12 is not open to her because the necessary period of one year has not elapsed.

Inherent Jurisdiction

For the reasons set out above, I am satisfied that this was a wrongful removal for the purposes of the Convention. There is therefore no need for me to consider exercising the inherent jurisdiction.

Conclusion

For the reasons set out above, I make a return order. This must be implemented in time for the children to start a new school term in Zimbabwe in January 2026. It is anticipated that F will travel to the UK and collect the children.

In making the return order, I have been mindful of the fact that when the children were wrongfully removed they had been living with their maternal grandparents in Zimbabwe and it appears from what M has said that a return to their care may not be an option. M does not intend to return to Zimbabwe to care for the children herself. M told me that her preference would be for F to care for the children but without any involvement from PGM. I do not make any stipulation in relation to PGM’s involvement. If care arrangements in Zimbabwe are disputed (whether as to PGM’s involvement or otherwise), it will be for the Zimbabwean authorities to resolve those disputes.

Ms Demery told me that these are “lovely children who have clearly had some very good parenting”. Looking to the future, I urge the parents to take heed of Ms Demery’s advice, which I readily endorse: “Whatever the outcome of these proceedings, it is vitally important that [the children] are free to enjoy relationships with both parents and their extended maternal and paternal families. Therefore, it will be in their long-term interests for their parents to address any identified parenting problems and the difficulties they have experienced in their communication to enable the children to enjoy positive relationships with both.”

I direct that this judgment and the case papers including Ms Demery’s report should be made available to the Zimbabwean authorities concerned for the children.